Citation Nr: 1525907
Decision Date: 06/17/15 Archive Date: 06/26/15
DOCKET NO. 10-26 436 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa
THE ISSUE
Entitlement to service connection for sleep apnea.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amanda Christensen, Associate Counsel
INTRODUCTION
The Veteran had active service from September 1995 to September 2000.
This appeal comes to the Board of Veterans' Appeals (Board) from a January 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.
The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Des Moines, Iowa in May 2011. A written transcript of this hearing has been prepared and incorporated into the evidence of record.
FINDING OF FACT
The Veteran's sleep apnea onset in service.
CONCLUSION OF LAW
The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Medical records indicate the Veteran was first diagnosed with obstructive sleep apnea in August 2008 after a sleep study was performed.
The Veteran contends that although he was not diagnosed until after service, his sleep apnea symptoms began in service.
At his Board hearing, the Veteran testified that he recalled waking up during service gasping. He reported fellow service members he was sleeping near would often kick or push him because he was disturbing their sleep by snoring and he would have to reposition himself to go back to sleep.
In a 2011 letter, a fellow service member indicated that he lived with the Veteran during service from 1998 to 2000 and that the Veteran typically napped twice a day and snored so loud while sleeping that he would wake himself up every five to 10 minutes. He stated that the Veteran constantly reported he was tired, often skipping going out. He would also fall asleep at work.
In a 2008 letter, the Veteran's spouse stated that since the Veteran was in service she has noticed that the Veteran has been fatigued during the day, wakes up with severe headaches, has trouble falling asleep, and is a restless sleeper, including waking up several times throughout the night.
In August 2012 a VA examiner stated that she would have to resort to mere speculation to render an etiology opinion as to the Veteran's sleep apnea given the conflicting evidence and information.
The VA obtained another medical opinion in January 2015. After a review of the record, the VA doctor opined that it cannot be determined that it is at least as likely as not that the Veteran's current sleep apnea had its causal origins in service as there is insufficient evidence in the records to show that the symptoms of sleep apnea were present or originated in service.
The Veteran submitted a private medical opinion in May 2015. The private physician opined that it is at least as likely as not that the Veteran's sleep apnea manifested during service and the weight gain during service was a major contributory factor to the development of obstructive sleep apnea. The private physician noted the Veteran's 53 pound weight increase during service, which brought his body mass index into the range for overweight. She noted the most common cause of obstructive sleep apnea in adults in excess weight and obesity. She stated that the most common symptoms of sleep apnea include daytime sleepiness, fatigue, snoring, and headaches. She pointed to the Veteran's complaints of headaches during service and the symptoms described by his spouse and former roommate and concluded that the constellation of symptoms that occurred during service is consistent with sleep apnea.
The Board finds that the medical opinions are at least in equipoise, and therefore the Veteran should be given the benefit of the doubt and service connection for obstructive sleep apnea granted.
ORDER
Service connection for sleep apnea is granted.
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M. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs